Howlers (Final)

About the origins of the Boston College subpoenas: The PSNI’s “murder investigation” isn’t a murder investigation. Period, full stop. No police investigator ever cared especially much about Jean McConville’s 1972 murder until 2011. This is an acknowledged fact. Nor is the PSNI now conducting an investigation; rather, it is attempting to borrow someone else’s. This attempt to take archival materials is not police work, and is unlikely to result in successful prosecutions. Don’t take my word for it: Go see what the PSNI’s chief constable said six years ago.

Remember that the ACLU of Massachusetts nailed just this point in their amicus brief:

“The PSNI/RUC’s self-inflicted wound, their sorry record of non-performance over more than 40 years, does not justify an invasion of academic freedom and the likely destruction of much of this valuable historic research. Academic freedom should not pay the price for the constable’s incompetence.”

So how does the government’s novella address the undisputed fact of police indifference and incompetence over the course of forty years? With a solemnly obtuse determination to not notice.

Page 16 (of the PDF file; pg. 4 of the brief):

“The application was prompted by a formal request from the U.K. for legal assistance in a criminal investigation pending in that country, involving kidnaping and murder, among other serious crimes, made pursuant to the US-UK MLAT.”

Or try page 69 (pg. 57 of the brief):

“Finally, nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party in a mundane business matter. ACLUM’s argument, if taken to its logical conclusion, would subject even the most sensitive and urgent law enforcement requests to litigation and delay by persons with a deeply felt, but tangential interest in such a criminal investigation. Under ACLUM’s reading of §3512, criminal defendants in foreign countries, and others who disagree with the foreign policies of the United States, could tie sensitive and urgent international criminal investigations in legal knots.”

A sensitive and confidential criminal matter! The most sensitive and urgent law enforcement requests! Sensitive and urgent international criminal investigations!

That were ignored for forty years. The DOJ has never addressed this point, as far as I can remember. They have always struck the same posture, just as if they were standing right over a still-warm body: Murder! Murder! Urgent!

Stick a pin in this one, because I offer a wager on the future. I think that “nowhere in ACLUM’s argument is there a recognition that a request by a foreign sovereign under a treaty regarding a sensitive and confidential criminal matter is any different than a civil request by a private party” because the PSNI’s request is, in fact, a civil request by a private party hiding behind the mask of the state. My bet is that the archival materials the PSNI gets from Boston College will only end up as evidence in a lawsuit filed by Jean McConville’s family against Gerry Adams.

And I would also bet that everyone involved already knows that. Including the federal government’s lawyers in Boston, who nonetheless go on pretending that they are parties to a quite ordinary (and not-at-all-political) criminal investigation.

Just remember the point, because time will tell. And let us have some accountability when that moment comes.

SITE MAP

The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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